This year, the BC Human Rights Tribunal (the “Tribunal”) issued the second highest award in British Columbia for damages to injury to dignity, hurt feelings and self respect in Ms. L v. Clear Pacific Holdings Ltd. and others, 2024 BCHRT 14.

Ms. L v. Clear Pacific Holdings Ltd. is an unusual case. The respondents did not participate in the hearing, so the Tribunal relied solely on the evidence provided by Ms. L, including her oral evidence, documentary evidence, expert evidence, and testimony from her father on the impacts the events had on Ms. L.

The complaint arose out of a 21-month employment relationship where Ms. L worked as a personal executive assistant to Sydney Hayden (“Hayden”), the owner of Clear Pacific Holdings Ltd. along with its associated entities (collectively, “Clear”). While some of the allegations arose from incidents where Ms. L and Hayden were travelling outside of BC, the Tribunal determined it had jurisdiction over these incidents since the employment relationship had a sufficient connection to BC. These reasons included that the companies were registered in BC, the main places of employment were Hayden’s house and yacht (both in BC), and Ms. L only travelled outside of BC with Hayden to work as his personal assistant.

Ms. L gave evidence that during her employment, she was subjected to physical assault, sexual assault and sexual harassment by Hayden. Additionally, her wages were withheld, and she was subjected to emotional and economic abuse.  In the end, she was physically assaulted and left stranded in a foreign country by her employer. The Tribunal further recognized that Hayden capitalized on Ms. L's disability, by abusing her substance use disorder to perpetuate his control over her.

The Tribunal found Ms. L’s evidence credible, found that she met the burden of proving the facts to support her complaint, and found that the respondents discriminated against her in her employment on the basis of her sex and physical disability.

The Tribunal awarded Ms. L $100,000 as compensation for injury to her dignity, feelings and self respect. The Tribunal noted that the purpose of damages for injury to a complainant’s dignity, feelings, and self-respect (often called “injury to dignity damages”) is to compensate the complainant, and not punish the respondent.

Injury to dignity damages are based on three broad factors: the nature of the discrimination, the complainant’s social context or vulnerability, and the effect on the complainant. Ultimately, the amount of damages is highly contextual and fact-specific, and while the Tribunal may consider awards in other cases, this should not result in a set ‘range’. Ms. L sought $100,000, and the Tribunal agreed that amount was appropriate because there was significant physical and sexual assault, rampant sexual harassment, and economic and emotional abuse. The Tribunal noted that sexual assault or physical assault by a supervisor is considered at the extreme end of the spectrum, and there was a significant power imbalance which Hayden leveraged to his advantage. The impact on Ms. L was also profound. Among other things, she developed PTSD and throughout her employment required medical attention multiple times for panic attacks, drug overdoses, and stress-related symptoms.

This figure constitutes the largest sum the Tribunal has ever awarded for damages related to sexual harassment and assault, and the second highest injury to dignity award in British Columbia (second to Francis v. BC Ministry of Justice (No. 5), 2021 BCHRT 16, where the Tribunal awarded $176,000).

In addition to the significant award of damages for injury to dignity, the Tribunal ordered payment to Ms. L for wage loss and expenses flowing from the discrimination totalling $61,541.90. As a result of the discrimination, Ms. L lost her employment, her ability to mitigate her damages by looking for other work, and her ability to return to her previous vocation due to post traumatic stress disorder flowing from the discrimination, which necessitated that she re-train for other forms of work. The Tribunal, therefore, awarded past wage loss, as well as future wage loss to December 2024, when Ms. L was expected to complete her retraining. Finally, the Tribunal awarded Ms. L’s expenses and post-judgement interest.

Significance For Employers

This ruling marks a notable escalation in the potential damages for victims of sexual harassment and assault in the workplace. The substantial award for injury to dignity in this case aligns with a general trend of increasing injury to dignity awards by the Tribunal in recent times.

While this case is unique in both the seriousness of the allegations and the fact that the respondents did not participate in the process, it still serves as a reminder of the power imbalance that can exist in employment relationships and the consequences of abusing that power.